Protection of Freedoms Bill (HL Bill 121)

(2) Health care includes all forms of health care provided for
individuals, whether relating to physical or mental health and also
includes palliative care and procedures that are similar to forms of
medical or surgical care but are not provided in connection with a
5medical condition.

(3) A health care professional is a person who is a member of a
profession regulated by a body mentioned in section 25(3) of the
National Health Service Reform and Health Care Professions Act
2002.

(3A) 10Any reference in this Part of this Schedule to health care provided
by, or under the direction or supervision of, a health care
professional includes a reference to first aid provided to an adult
by any person acting on behalf of an organisation established for
the purpose of providing first aid.

(3B) 15Relevant personal care means—

(a) physical assistance, given to a person who is in need of it
by reason of age, illness or disability, in connection with—

(i) eating or drinking (including the administration of
parenteral nutrition),

(ii) 20toileting (including in relation to the process of
menstruation),

(iii) washing or bathing,

(iv) dressing,

(v) oral care, or

(vi) 25the care of skin, hair or nails,

(b) the prompting, together with supervision, of a person who
is in need of it by reason of age, illness or disability in
relation to the performance of any of the activities listed in
paragraph (a) where the person is unable to make a
30decision in relation to performing such an activity without
such prompting and supervision, or

(c) any form of training, instruction, advice or guidance
which—

(i) relates to the performance of any of the activities
35listed in paragraph (a),

(ii) is given to a person who is in need of it by reason of
age, illness or disability, and

(iii) does not fall within paragraph (b).

(3C) Relevant social work has the meaning given by section 2(4) of the
40Health and Personal Social Services Act (Northern Ireland) 2001
and social care worker means a person who is a social care worker
by virtue of section 2(2)(a) of that Act.

(3D) Assistance in relation to general household matters is day to day
assistance in relation to the running of the household of the person
45concerned where the assistance is the carrying out of one or more
of the following activities on behalf of that person—

(a) managing the person’s cash,

(b) paying the person’s bills,

(c) shopping.

(3E) Relevant assistance in the conduct of a person’s own affairs is
anything done on behalf of the person by virtue of—

(a) an enduring power of attorney (within the meaning of the
Enduring Powers of Attorney (Northern Ireland) Order
51987 (NI 16)) in respect of the person which is—

(i) registered in accordance with that Order, or

(ii) the subject of an application to be so registered,

(b) an order made under Article 99 or 101 of the Mental Health
(Northern Ireland) Order 1986 (NI 4) by the High Court in
10relation to the person or the person’s property or affairs, or

(c) the appointment of a representative to receive payments
on behalf of the person in pursuance of regulations made
under the Social Security Administration (Northern
Ireland) Act 1992.”

(3) 15Omit paragraph 7(4) (certain activities in residential care or nursing homes
to be regulated activity).

(4) In paragraph 7(5) (day to day management or supervision of certain
activities to be regulated activity) omit “, (4)”.

(5) Omit paragraph 7(9) (functions of certain persons to be regulated activity).

(6) 20Omit paragraph 8 (the persons referred to in paragraph 7(9) whose functions
are to be regulated activity).

(7) In paragraph 10(2) (the period condition)—

(a) omit “or 7(1)(a), (b), (c), (d) or (g)”, and

(b) in paragraph (b), omit “or vulnerable adults (as the case may be)”.

25Alteration of test for barring decisions

4 (1) For sub-paragraphs (2) and (3) of paragraph 1 of Schedule 1 to the
Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (automatic
inclusion of person to whom paragraph applies in children’s barred list)
substitute—

“(2) 30If the Secretary of State has reason to believe that—

(a) this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in
regulated activity relating to children,

the Secretary of State must refer the matter to ISA.

(3) 35If (whether or not on a reference under sub-paragraph (2)) ISA—

(a) is satisfied that this paragraph applies to a person, and

(b) has reason to believe that the person is or has been, or
might in future be, engaged in regulated activity relating
to children,

40it must include the person in the children’s barred list.”

(2) For sub-paragraphs (2) to (4) of paragraph 2 of that Schedule to that Order
(inclusion of person to whom paragraph applies in children’s barred list
with right to make representation afterwards) substitute—

“(2) If the Secretary of State has reason to believe that—

(a) 45this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in
regulated activity relating to children,

the Secretary of State must refer the matter to ISA.

(3) Sub-paragraph (4) applies if (whether or not on a reference under
5sub-paragraph (2)) it appears to ISA that—

(a) this paragraph applies to a person, and

(b) the person is or has been, or might in future be, engaged in
regulated activity relating to children.

(4) ISA must give the person the opportunity to make representations
10as to why the person should not be included in the children’s
barred list.

(5) Sub-paragraph (6) applies if—

(a) the person does not make representations before the end of
any time prescribed for the purpose, or

(b) 15the duty in sub-paragraph (4) does not apply by virtue of
paragraph 16(2).

(6) If ISA—

(a) is satisfied that this paragraph applies to the person, and

(b) has reason to believe that the person is or has been, or
20might in future be, engaged in regulated activity relating
to children,

it must include the person in the list.

(7) Sub-paragraph (8) applies if the person makes representations
before the end of any time prescribed for the purpose.

(8) 25If ISA—

(a) is satisfied that this paragraph applies to the person,

(b) has reason to believe that the person is or has been, or
might in future be, engaged in regulated activity relating
to children, and

(c) 30is satisfied that it is appropriate to include the person in the
children’s barred list,

it must include the person in the list.”

(3) In paragraph 3 of that Schedule to that Order (inclusion in children’s barred
list on behaviour grounds)—

(a) 35in sub-paragraph (1)(a) for the words from “has” to “conduct,”
substitute “—

(i) has (at any time) engaged in relevant
conduct, and

(ii) is or has been, or might in future be,
40engaged in regulated activity relating to
children,”,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and”
at the end of the paragraph), insert—

“(aa) it has reason to believe that the person is or has
45been, or might in future be, engaged in regulated
activity relating to children,”, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(4) In paragraph 5 of that Schedule to that Order (inclusion in children’s barred
list because of risk of harm)—

(a) in sub-paragraph (1)(a) for “falls within sub-paragraph (4)”
substitute “—

(i) 5falls within sub-paragraph (4), and

(ii) is or has been, or might in future be,
engaged in regulated activity relating to
children,”,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and”
10at the end of the paragraph), insert—

“(aa) it has reason to believe that the person is or has
been, or might in future be, engaged in regulated
activity relating to children,”, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(5) 15For sub-paragraphs (2) and (3) of paragraph 7 of that Schedule to that Order
(automatic inclusion of person to whom paragraph applies in adults’ barred
list) substitute—

“(2) If the Secretary of State has reason to believe that—

(a) this paragraph might apply to a person, and

(b) 20the person is or has been, or might in future be, engaged in
regulated activity relating to vulnerable adults,

the Secretary of State must refer the matter to ISA.

(3) If (whether or not on a reference under sub-paragraph (2)) ISA—

(a) is satisfied that this paragraph applies to a person, and

(b) 25has reason to believe that the person is or has been, or
might in future be, engaged in regulated activity relating
to vulnerable adults,

it must include the person in the adults’ barred list.”

(6) For sub-paragraphs (2) to (4) of paragraph 8 of that Schedule to that Order
30(inclusion of person to whom paragraph applies in adults’ barred list with
right to make representation afterwards) substitute—

“(2) If the Secretary of State has reason to believe that—

(a) this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in
35regulated activity relating to vulnerable adults,

the Secretary of State must refer the matter to ISA.

(3) Sub-paragraph (4) applies if (whether or not on a reference under
sub-paragraph (2)) it appears to ISA that—

(a) this paragraph applies to a person, and

(b) 40the person is or has been, or might in future be, engaged in
regulated activity relating to vulnerable adults.

(4) ISA must give the person the opportunity to make representations
as to why the person should not be included in the adults’ barred
list.

(5) 45Sub-paragraph (6) applies if—

(a) the person does not make representations before the end of
any time prescribed for the purpose, or

(b) the duty in sub-paragraph (4) does not apply by virtue of
paragraph 16(2).

(6) If ISA—

(a) is satisfied that this paragraph applies to the person, and

(b) 5has reason to believe that the person is or has been, or
might in future be, engaged in regulated activity relating
to vulnerable adults,

it must include the person in the list.

(7) Sub-paragraph (8) applies if the person makes representations
10before the end of any time prescribed for the purpose.

(8) If ISA—

(a) is satisfied that this paragraph applies to the person,

(b) has reason to believe that the person is or has been, or
might in future be, engaged in regulated activity relating
15to vulnerable adults, and

(c) is satisfied that it is appropriate to include the person in the
adults’ barred list,

it must include the person in the list.”

(7) In paragraph 9 of that Schedule to that Order (inclusion in adults’ barred list
20on behaviour grounds)—

(a) in sub-paragraph (1)(a) for the words from “has” to “conduct,”
substitute “—

(i) has (at any time) engaged in relevant
conduct, and

(ii) 25is or has been, or might in future be,
engaged in regulated activity relating to
vulnerable adults,”,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and”
at the end of the paragraph), insert—

“(aa) 30it has reason to believe that the person is or has
been, or might in future be, engaged in regulated
activity relating to vulnerable adults,”, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(8) In paragraph 11 of that Schedule to that Order (inclusion in adults’ barred
35list because of risk of harm)—

(a) in sub-paragraph (1)(a) for “falls within sub-paragraph (4)”
substitute “—

(i) falls within sub-paragraph (4), and

(ii) is or has been, or might in future be,
40engaged in regulated activity relating to
vulnerable adults,”,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and”
at the end of the paragraph), insert—

“(aa) it has reason to believe that the person is or has
45been, or might in future be, engaged in regulated
activity relating to vulnerable adults,”, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

Abolition of controlled activity

5 Omit Articles 25 to 27 of the Safeguarding Vulnerable Groups (Northern
Ireland) Order 2007 (controlled activity).

Abolition of monitoring

6 5Omit Articles 28 to 31 of the Safeguarding Vulnerable Groups (Northern
Ireland) Order 2007 (monitoring).

Information for purposes of making barring decisions

7 (1) In paragraph 19 of Schedule 1 to the Safeguarding Vulnerable Groups
(Northern Ireland) Order 2007 (information required by ISA about persons
10to whom grounds for barring apply)—

(a) in sub-paragraph (1)—

(i) in paragraph (a) after “applies” insert “or appears to apply”,

(ii) in paragraph (b) for “apply” substitute “applies or appears to
apply”, and

(iii) 15omit paragraph (d),

(b) in sub-paragraphs (2) and (3) for “thinks might” substitute
“reasonably believes to”, and

(c) in sub-paragraph (6)—

(i) omit the words from “which” to “it is”, and

(ii) 20omit “or paragraph 20(2)”.

(2) In paragraph 20 of that Schedule to that Order (provision of information by
Secretary of State to ISA) for sub-paragraph (3) substitute—

“(3) Where the Secretary of State is under a duty under paragraph 1, 2,
7 or 8 to refer a matter to ISA, the Secretary of State must provide
25to ISA any prescribed details of relevant matter (within the
meaning of section 113A of the Police Act 1997) of a prescribed
description which has been made available to the Secretary of
State for the purposes of Part 5 of that Act.”

Review of barring decisions

8 30After paragraph 18 of Schedule 1 to the Safeguarding Vulnerable Groups
(Northern Ireland) Order 2007 (power to apply for review of a person’s
inclusion in a barred list) insert—

“18A (1) Sub-paragraph (2) applies if a person’s inclusion in a barred list is
not subject to—

(a) 35a review under paragraph 18, or

(b) an application under that paragraph,

which has not yet been determined.

(2) ISA may, at any time, review the person’s inclusion in the list.

(3) On any such review, ISA may remove the person from the list if,
40and only if, it is satisfied that, in the light of—

(a) information which it did not have at the time of the
person’s inclusion in the list,

(b) any change of circumstances relating to the person
concerned, or

(c) any error by ISA,

it is not appropriate for the person to be included in the list.”

5Information about barring decisions

9 (1) For Articles 32 to 34 of the Safeguarding Vulnerable Groups (Northern
Ireland) Order 2007 (provision of vetting information and information about
cessation of monitoring) substitute—

“32A Provision of barring information on request

(1) 10The Secretary of State must provide a person (A) with the
information mentioned in paragraph (3) in relation to another (B)
if—

(a) A makes an application for the information and pays any fee
payable in respect of the application,

(b) 15the application contains the appropriate declaration, and

(c) the Secretary of State has no reason to believe that the
declaration is false.

(2) The appropriate declaration is a declaration by A—

(a) that A falls within column 1 of the table in Schedule 5 in
20relation to B,

(b) that column 2 of the entry by virtue of which A falls within
column 1 refers to children or (as the case may be) vulnerable
adults, and

(c) that B has consented to the provision of the information to A.

(3) 25The information is—

(a) if A’s declaration states that column 2 of the relevant entry
refers to children, whether B is barred from regulated activity
relating to children, and

(b) if A’s declaration states that column 2 of the relevant entry
30refers to vulnerable adults, whether B is barred from
regulated activity relating to vulnerable adults.

(4) If B consents to the provision of information to A in relation to an
application under this Article, the consent also has effect in relation
to any subsequent such application by A.

(5) 35The Secretary of State may prescribe any fee payable in respect of an
application under this Article.

(6) Fees received by the Secretary of State by virtue of this Article must
be paid into the Consolidated Fund of the United Kingdom.

(7) The Secretary of State may determine the form, manner and contents
40of an application for the purposes of this Article (including the form
and manner of a declaration contained in such an application).

32B Provision of barring information on registration

(1) The Secretary of State must establish and maintain a register for the
purposes of this Article.

(2) The Secretary of State must register a person (A) in relation to
another (B) if—

(a) A makes an application to be registered in relation to B and
pays any fee payable in respect of the application,

(b) 5the application contains the appropriate declaration, and

(c) the Secretary of State has no reason to believe that the
declaration is false.

(3) The appropriate declaration is a declaration by A—

(a) that A falls within column 1 of the table in Schedule 5 in
10relation to B,

(b) that column 2 of the entry by virtue of which A falls within
column 1 refers to children or (as the case may be) vulnerable
adults, and

(c) that B has consented to the application.

(4) 15A’s application and registration relate—

(a) if A’s declaration states that column 2 of the relevant entry
refers to children, to regulated activity relating to children;

(b) if A’s declaration states that column 2 of the relevant entry
refers to vulnerable adults, to regulated activity relating to
20vulnerable adults.

(5) The Secretary of State must notify A if B is barred from regulated
activity to which A’s registration relates.

(6) The requirement under paragraph (5) is satisfied if notification is
sent to any address recorded against A’s name in the register.

(7) 25If B consents to the provision of information to A under Article 32A,
the consent also has effect as consent to any application by A to be
registered in relation to B under this Article.

(8) The Secretary of State may prescribe any fee payable in respect of an
application under this Article.

(9) 30Fees received by the Secretary of State by virtue of this Article must
be paid into the Consolidated Fund of the United Kingdom.

(10) The Secretary of State may determine the form, manner and contents
of an application for the purposes of this Article (including the form
and manner of a declaration contained in such an application).”

(2) 35In Article 35 of that Order (cessation of registration)—

(a) in paragraph (1) for “34” substitute “32B”,

(b) in paragraph (2) for “(6)” substitute “(5)”, and

(c) after paragraph (3) insert—

“(3A) Circumstances prescribed by virtue of paragraph (3) may, in
40particular, include that—

(a) the Secretary of State has asked the registered person
(A) to make a renewed declaration within the
prescribed period in relation to the person (B) in
relation to whom A is registered, and

(b) 45either—

(i) A has failed to make the declaration within
that period, or

(ii) A has made the declaration within that period
but the Secretary of State has reason to believe
5that it is false.

(3B) A renewed declaration is a declaration by A—

(a) that A falls within column 1 of the table in Schedule 5
in relation to B,

(b) that column 2 of the entry by virtue of which A falls
10within column 1 refers to children or (as the case may
be) vulnerable adults, and

(c) that B consents to the registration of A in relation to B.

(3C) If B consents to the provision of information to A under
Article 32A, the consent also has effect as consent to the
15registration of A in relation to B.

(3D) Article 36 applies in relation to the making of a declaration in
response to a request from the Secretary of State of the kind
mentioned in paragraph (3A)(a) as it applies in relation to the
making of a declaration in an application made for the
20purposes of Article 32B.”

(3) In Article 36 of that Order (declarations under Articles 32 and 34)—

(a) in the heading for “32 and 34” substitute “32A and 32B”, and

(b) in paragraph (1) for “32 or 34” substitute “32A or 32B”.

(4) Omit entry 19 in the table in paragraph 1 of Schedule 5 to that Order (power
25to add entries to the table).

(5) In paragraph 2 of Schedule 5 to that Order (power to amend entries in the
table) for the words from “any” to the end substitute “this Schedule”.

(6) Omit paragraph 3(1)(b) of Schedule 5 to that Order (barring information
where certain activities carried on for the purposes of the armed forces of the
30Crown) and the word “or” before it.

Duty to check whether person barred

10 After Article 36 of the Safeguarding Vulnerable Groups (Northern Ireland)
Order 2007 (declarations relating to the provision of barring information)
insert—

“36ZA 35 Duty to check whether person barred

(1) A regulated activity provider who is considering whether to permit
an individual (B) to engage in regulated activity relating to children
or vulnerable adults must ascertain that B is not barred from the
activity concerned before permitting B to engage in it.

(2) 40A personnel supplier who—

(a) is considering whether to supply an individual (B) to another
(P), and

(b) knows, or has reason to believe, that P will make
arrangements for B (if supplied) to engage in regulated
45activity relating to children or vulnerable adults,

must ascertain that B is not barred from the activity concerned before
supplying B to P.

(3) A person is, in particular, to be treated as having met the duty in
paragraph (1) or (2) if condition 1, 2 or 3 is met.

(4) 5Condition 1 is that the person has, within the prescribed period, been
informed under Article 32A that B is not barred from the activity
concerned.

(5) Condition 2 is that—

(a) the person has, within the prescribed period, checked a
10relevant enhanced criminal record certificate of B which has
been obtained within that period, and

(b) the certificate does not show that B is barred from the activity
concerned.

(6) Condition 3 is that—

(a) 15the person has, within the prescribed period, checked—

(i) a relevant enhanced criminal record certificate of B,
and

(ii) up-date information given, within that period, under
section 116A of the Police Act 1997 in relation to the
20certificate,

(b) the certificate does not show that B is barred from the activity
concerned, and

(c) the up-date information is not advice to request B to apply for
a new enhanced criminal record certificate.

(7) 25The Secretary of State may by regulations provide for—

(a) the duty under paragraph (1) not to apply in relation to
persons of a prescribed description,

(b) the duty under paragraph (2) not to apply in relation to
persons of a prescribed description.

(8) 30In this Article—

• “enhanced criminal record certificate” means an enhanced
  criminal record certificate issued under section 113B of the
  Police Act 1997,

• “relevant enhanced criminal record certificate” means—

  (a)

  35in the case of regulated activity relating to children,
  an enhanced criminal record certificate which
  includes, by virtue of section 113BA of the Police Act
  1997, suitability information relating to children, and

  (b)

  in the case of regulated activity relating to vulnerable
  40adults, an enhanced criminal record certificate which
  includes, by virtue of section 113BB of that Act,
  suitability information relating to vulnerable adults.”

Restrictions on duplication with barred lists in England and Wales and Scotland

11 (1) Before paragraph 6 of Schedule 1 to the Safeguarding Vulnerable Groups
45(Northern Ireland) Order 2007 (restriction on inclusion in children’s barred
list for Scottish cases), and after the italic cross-heading before that